Bangalore District Court
Amamra Centering Sheets vs Prasanna on 31 October, 2025
SCCH-2 1 C.C.No.9917/2023
KABC020324592023
IN THE COURT OF THE VI ADDL. JUDGE, COURT OF
SMALL CAUSES AND ADDL. CHIEF JUDICIAL
MAGISTRATE,
BENGALURU CITY (SCCH-2).
C.C.NO. 9917/2023
:: PRESENT ::
Sri. H.P. Mohan Kumar, B.Sc.,LL.B.,
6th Addl. Judge, Court of Small
Causes and ACJM, Bengaluru.
Dated: On this the 31st day of October, 2025.
Complainant : M/s. Amara Centering Sheets
The Proprietor, Deepak Amara
S/o S Amara,
Aged about 36 years,
R/at: No.10/2, Laaly Mahal,
Jakkur cross, Opp. to Jakkur Flying
School, Bytarayanapura,
Bangalore 560092.
(By Sri. Santosh B, Advocate)
SCCH-2 2 C.C.No.9917/2023
- Vs. -
Accused : Sri Prasanna
Aged about 37 years,
R/at: No.73, 1st J main road,
Gulabi road, BDA layout, 1st block,
2nd stage, Nagarbhavi,
Bengaluru 560072.
(By Sri. Nataraja S G, Advocate)
:: J U D G M E N T ::
The complainant has filed the present complaint U/Sec.200 of Cr.P.C., alleging that the accused has committed the offence punishable U/Sec.138 of Negotiable Instruments Act (herein after referred as N.I.Act).
2. The case of the complainant in brief is as follows:-
The complainant is a proprietor of M/s. Amara Centering Business and carrying its business at Jakkur in Bengaluru and the accused being the Civil Contractor visited the complainant for the business purpose and hence were known to each other in terms of business. During the month of September 2020, the accused approached the complainant for hand loan of Rs.21,30,000/- and assured to return the same within 2 years by way of cash only. As per the request made by the accused, the complainant had made SCCH-2 3 C.C.No.9917/2023 arrangements from his family members, friends and also by pledging golden ornaments and paid Rs.21,30,000/- to the accused by way of cash on various dates.
Further, after the lapse of 2 years, the accused again took 5 months time. Thereafter after repeated requests from the side of complainant, the accused has issued cheques bearing No. 444743 dated 12.12.2022 for Rs.9,90,000/-, cheque bearing No. 444744 dated 12.12.2022 for Rs.6,00,000/- and cheque bearing No. 444746 dated 12.12.2022 for Rs.5,40,000/- which were drawn on Canara Bank, SME branch, Mahadevapura, Bangalore towards discharge of his liability and at which point of time assured the complainant that the cheques will be honoured in their presentation.
As per the instructions of accused, the complainant has presented the said cheques for encashment through his banker namely Kotak Mahindra Bank, Sahakarnagar branch, Bengaluru on 12.12.2022. However, the said cheques were got bounced for the reason as "Account Closed" on 14.12.2022. After intimating the dishonour of cheques to the accused, he has informed that he will reopen the bank account and also requested to represent the cheques for encashment on 06.03.2023. Again as per the instructions of the accused, the complainant presented the cheques for 2nd time. However, 2 nd time also the cheques SCCH-2 4 C.C.No.9917/2023 were got bounced for the reason as "Account Closed" on 07.03.2023. Thereafter, the complainant has issued the legal notice to the accused on 01.04.2023. But the notice sent through speed post as well as through RPAD were returned with shara as "No Such Person''. Hence, cause of action arose to file the complaint.
3. The cognizance was taken for the offence punishable U/ Sec.138 of N.I.Act. After filing of the complaint, the sworn statement of the complainant was recorded and it prima- facie found that the accused has committed the offence punishable U/Sec.138 of N.I.Act. Hence, criminal case was registered and the summons was issued to the accused.
4. In response to the summons, the accused appeared through his counsel and thereafter plea was recorded. The accused was denied the accusation leveled against him, claimed to be tried. Further, the statement of the accused as contemplated U/Sec.313 of Cr.P.C., was recorded. The accused has denied the incriminating evidence appeared against him in the evidence of complainant and submitted that he has defence evidence.
5. The Hon'ble Apex Court of India in Indian Bank Association and Others vs Union Bank of India and SCCH-2 5 C.C.No.9917/2023 Another reported in AIR 2014 SC 2528, held that "Sworn Statement of the complainant has to be treated as examination in chief". In the instant case, the proprietor of complainant got examined as P.W.1 and got marked the documents at Ex.P.1 to Ex.P.12, Ex.P2(a), Ex.P4(a), Ex.P6(a), Ex.P10(a) and Ex.P11(a). P.W.1 was subject to the process of cross-examination from the side of accused. The accused examined himself as D.W.1. It is pertinent to note that during the course of cross-examination of PW.1, Ex.D1 to Ex.D15 & Ex.D18 to Ex.D31 were got marked through confrontation. It is relevant to note that, Ex.D16 & Ex.D17 were got marked through DW.1. D.W.1 was subject to the process of cross-examination from the side of complainant.
6. Heard the arguments from both side. The learned counsel for accused also filed written arguments and also furnished decisions. Perused the materials available on record.
7. Now the points that arise for consideration of this Court are as hereunder:
1. Whether the complainant has proved that the accused has committed the offence punishable U/Sec.138 of N.I.Act ?SCCH-2 6 C.C.No.9917/2023
2. What Order?
8. The findings of this Court to the above-referred points are as follows:
Point No.1: In the Negative.
Point No.2: As per final order, for the following:-
REASONS
9. POINT No.1: In order to prove the case, the proprietor of complainant got examined as P.W.1 by filing affidavit in support of his oral examination-in-chief. In the affidavit P.W.1 has reiterated the complaint averments in verbatim. Hence, this Court need not to recapitulate the same once again at this juncture. In support of his oral testimony, P.W.1 got marked documents at Ex.P.1 to Ex.P.12, Ex.P2(a), Ex.P4(a), Ex.P6(a), Ex.P10(a) and Ex.P11(a). P.W.1 was subject to the process of cross-examination from the side of accused. The accused examined himself as D.W.1. It is pertinent to note that during the course of cross-examination of PW.1, Ex.D1 to Ex.D15 & Ex.D18 to Ex.D31 were got marked through confrontation. It is relevant to note that, Ex.D16 & Ex.D17 were got marked through DW.1.
SCCH-2 7 C.C.No.9917/202310. Now itself it is appropriate to see the documents marked at Ex.P-Series and Ex.D-Series.
Ex.P-Series.
Ex.P.1 is the cheque bearing No.444743 dated 12.12.2022. Ex.P.1(a) is the signature of accused. Ex.P.2 and Ex.P2(a) are the bank endorsements dated:14.12.2022 and 07.03.2023 respectively.
Ex.P.3 is the cheque bearing No.444744 dated 12.12.2022. Ex.P.3(a) is the signature of accused. Ex.P.4 and Ex.P4(a) are the bank endorsements dated:14.12.2022 and 07.03.2023 respectively.
Ex.P.5 is the cheque bearing No.444746 dated 12.12.2022. Ex.P.5(a) is the signature of accused. Ex.P.6 and Ex.P6(a) are the bank endorsements dated:14.12.2022 and 07.03.2023 respectively.
Ex.P.7 is the office copy of the legal notice dated:
01.04.2023. Ex.P.8 & Ex.P9 are the RPAD receipts. Ex.P.10 & Ex.P11 are the returned postal covers. Ex.P10(a) & Ex.P11(a) are the returned notices and Ex.P12 is the computerized copy of registered sale deed dated 28.05.2020.
Ex.D-Series Ex.D1 to Ex.D7 are the certified copies of order sheet, complaint pertaining to CC No.9914/2023, certified copy of SCCH-2 8 C.C.No.9917/2023 cheque bearing No. 374084 dated 12.12.2022, certified copy of bank endorsement, certified copy of legal notice dated 01.04.2023, certified copy of postal receipts and certified copies of speed post acknowledgments.
Ex.D8 to Ex.D15 are the certified copies of order sheet and complaint pertaining to CC No.9913/2023, certified copies of cheque bearing No. 998461 dated 12.12.2022, certified copy of bank endorsement dated 13.12.2022, certified copy of legal notice dated 01.04.2023, certified copies of postal receipts, certified copy of speed post acknowledgment due card and certified copy of postal track consignment.
Ex.D16 is the account statement pertaining to accused. Ex.D17 is the Notarized copy of Aadhar card pertaining to accused. Ex.D18 & Ex.D19 are the colour printouts.
Ex.D20 to Ex.D25 are the certified copies of order sheet and complaint pertaining to CC No.9915/2023, certified copy of cheque bearing No. 000010 dated 12.12.2022, certified copies of bank endorsements dated 13.12.2022 and 06.03.2023, certified copy of legal notice dated 01.04.2023.
Ex.D26 to Ex.D31 are the certified copies of order sheet and complaint pertaining to CC No.9916/2023, certified copy of cheque bearing No. 594025 dated 12.12.2022, certified SCCH-2 9 C.C.No.9917/2023 copies of bank endorsements dated 14.12.2022 and 07.03.2023, certified copy of legal notice dated 01.04.2023.
11. The learned counsel for accused has relied on the following decisions:
i) CRMC No. 381/2018 between Engineering Control Vs. Banday Infratech Pvt. Ltd.,
ii) 2010 Cri. L.J 3386 between S Timmappa Vs. L S Prakash.
iii) (2008) 4 SCC 54 between Krishna Janardhana Bhat Vs. Dattatraya G Hegde.
iv) 2012 (3) KCCR 2057 between Veerayya Vs. G K Madivalar.
v) 2015 AIR SCW 64 between K Subramani Vs. K Dadodara Naidu.
vi) 1998 Cri. L. J 906 between A Bhoosanrao Vs. Purushothamdas Pantani and another.
vii) AIR 2019 SC 1983 between Basalingappa Vs. Mudibasappa.
SCCH-2 10 C.C.No.9917/2023This court has carefully gone through the decisions relied by the counsel for accused and applied the principles to the case on hand.
12. Before going to discuss the main aspect, it is worth to reproduce the provisions of Sec.138 and 139 of N.I.Act, the same as hereunder:
138. Dishonour of cheque for insufficiency, etc., of funds in the account: -
Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other SCCH-2 11 C.C.No.9917/2023 provisions of this Act, be punished with imprisonment for (a term which may be extended to two years), or with fine which may extend to twice the amount of the cheque, or with both:
Provided that nothing contained in this section shall apply unless-
(a) the cheque has been presented to the bank within a period of Six months from the date on which it is drawn or within the period of its validity, whichever is earlier; (The period of 6 months has been reduced to 3 months, vide R.B.I. notificationNo.RBI/201112/251,DBOD.
AMLBC No.47/14.01.001/2011-12, dated:4th November 2011 (w.e.f. 01.04.2012))
(b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within thirty days of the SCCH-2 12 C.C.No.9917/2023 receipt of information by him from the bank regarding the return of the cheque as unpaid; and
(c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice.
Explanation: - For the purposes of the section, "debt or other liability" means a legally enforceable debt or other liability.
139. Presumption in favour of holder:- It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in section 138 for the discharge, in whole or in part, of any debt or other liability.
13. At this juncture it is worth to refer the decision of the Hon'ble Apex Court reported in AIR 2010 S.C. 1898, between Rangappa V/s Mohan wherein their lordships have observed at para 26 as hereunder:
SCCH-2 13 C.C.No.9917/2023"No doubt that there is a initial presumption which favours the complainant".
14. It is germane to note that the proceedings U/Sec.138 of N.I. Act is an exception to the general principle that the accused is presumed to be innocent until the charge leveled against him is proved beyond reasonable doubt. In the proceedings initiated U/Sec.138 of the N.I. Act proof of beyond reasonable doubt is subject to the presumption envisaged under Sec.139 of the N.I. Act. Once the requirement of Sec.138 of the N.I. Act is fulfilled, then it has to be presumed that the cheque was issued in discharge of legally recoverable debt or liability. The presumption envisaged under Sec.139 of N.I. Act is mandatory presumption and it has to be raised in every cheque bounce cases.
15. Now, it is worth to refer the decision of the Hon'ble Apex Court between Hiten P Dalal V/s Brathindranath Manarji reported in 2001(6) SCC 16, wherein the Hon'ble Apex Court observed that, "under Sec.138 of Negotiable Instruments Act, the complainant is not required to establish either the legality or enforceability of the debt or liability since he can avail the benefit of presumption U/Sec.118 and Sec.139 of N.I. Act in his favour".
SCCH-2 14 C.C.No.9917/202316. It is also settled position of law that, the presumption available U/Sec. 138 of N.I Act is a rebuttable presumption. Further, to rebut the said presumption the accused need not to enter into the witness box. However, the accused can establish his probable defence by creating a doubt about the existence of legally enforceable debt or liability.
17. Further, it is also settled position of law that, the standard of proof of rebutting the presumption is that of preponderance of probabilities. It is also settled position of law that, if the accused succeeded in rebutting the presumption then the burden shifts back to the complainant. At this juncture, again it is worth to refer the decision of the Hon'ble Apex Court reported in AIR 2010 S.C. 1898, between Rangappa Vs. Sri. Mohan, wherein the Hon'ble Apex Court has observed that, "the standard of proof to rebut the presumption is that one of preponderance of probabilities".
18. It is also settled position of law that, "it is immaterial that, the cheque may have been filled in by any person other than the drawer, if the cheque is duly signed by the drawer. If the cheque otherwise valid, within the provisions of Sec.138 would be attracted".
SCCH-2 15 C.C.No.9917/202319. Now, this court has to see whether the complainant has complied the ingredients of Sec.138 of N.I.Act or not and whether the accused has rebutted the presumption or not?. In the instant case the accused examined himself as DW.1. In his examination in chief, the accused has deposed that, at the time of receiving centering materials on the basis of rent, he had given his cheques to the complainant as security. He also deposed that, he was not affixed his signatures on the cheques. Therefore, it is crystal clear that Ex.P1, Ex.P3 & Ex.P5 are the cheques pertaining to the bank account of accused.
20. Now, the question before this court is whether the signatures found in Ex.P1, Ex.P3 & Ex.P5 are the signatures of accused or not?. As this court already pointed out that at the time of examination in chief of DW.1, the accused has disputed his signatures found in Ex.P1, Ex.P3 & Ex.P5. It is relevant to note that during the course of cross-examination of PW.1, the learned counsel for accused doesn't suggest that the accused had issued the cheques without affixing his signatures. Admittedly, the accused has taken a specific contention that he had issued the cheques in question towards security. Normally any prudent man would not accept the cheques without signature even for security purpose also. Moreover as per Ex.P2, Ex.P2(a), Ex.P4, SCCH-2 16 C.C.No.9917/2023 Ex.P4(a) and Ex.P5 and Ex.P5(a), the bank has issued the endorsements with reasons as "Account Closed'' and not on account of "Drawers Signatures Differs''. In spite of that, the accused has deliberately disputed his signatures. The said contention cannot be accepted. Therefore, it is pellucid that the signatures found in Ex.P1, Ex.P3 & Ex.P5 are the signatures of accused.
21. According to the complainant, Ex.P1, Ex.P3 & Ex.P5 were presented for encashment on 14.12.2022. The bank has issued endorsement with reasons as "Account Closed'' as per Ex.P2, Ex.P4 & Ex.P6. Again the complainant presented the cheques for encashment on 07.03.2023. However, as per Ex.P2(a), Ex.P4(a) and Ex.P6(a) cheques were returned unpaid as "Account closed''. As per Ex.P7 the complainant has issued the legal notice to the accused on 01.04.2023. As per Ex.P8 & Ex.P9, the said notice was dispatched on 01.04.2023 itself. As per Ex.P10, Ex.P11 the said notice returned with shara as "No such person''.
22. Now, the question before this court is whether the complainant has issued the legal notice in accordance with Sec.138(b) of NI Act or not?. As per Ex.P2, Ex.P4 & Ex.P6, the cheques in question were got bounced with reasons as "Account Closed''. Now the important question before this court is whether the endorsement "Account Closed"
SCCH-2 17 C.C.No.9917/2023attracts the offence punishable under section 138 of N.I.Act or not?. In this regard, it is appropriate to rely on the decision of the Hon'ble Apex Court reported in 2012(13) SCC 375 between Laxmi Dyechem V/s State of Gujarath, wherein the Hon'ble Apex Court held at para 16 as hereunder: " the expression 'amount of money...... is insufficient' appearing in Sec.138 of the Act is a genus and dishonour for reasons such as "Account Closed", "Payment stopped", "referred to the drawer", are only species of that genus". Therefore, with the help of the above referred decision of the Hon'ble Apex Court, it is crystal clear that, if the endorsement issued by the bank as "Account Closed" also attracts an offence punishable under section 138 of N.I Act.
23. It is relevant to note that as per Ex.P2, Ex.P4 & Ex.P6 cheques got bounced with reasons as "Account closed''. According to the complainant, after informing about bouncing of cheque, the accused requested him to wait for two months and he would reopen the bank account. As such he was represented the cheques for encashment. It is interesting to note that, there are no documentary evidence from the side of complainant with regard to the assurance given by the accused to represent the cheques for encashment. Normally any prudent man cannot accept the SCCH-2 18 C.C.No.9917/2023 oral assurance given by the accused subsequent to the dishonour of cheque with reasons as "Account Closed''. Under such circumstances normally prudent man either insisting to issue fresh cheques or insisting to execute necessary documents. In the instant case there are no documents forthcoming from the side of complainant regarding the accused had assured the complainant that he will reopen the bank account. Therefore, the reasons assigned by the complainant to represent the cheques for the 2nd time that too dishonoured with reasons as "Account closed'' will not come to his aid.
24. It is settled position of law that, the complainant can present the cheque for encashment any number of times within the stipulated period. Suppose if the cheque got bounced with reasons as "Funds Insufficient'', then the accused can maintain amount for encashment even after dishonour of cheque also. However in the instant case the accused has already closed his account. Under such circumstances, how the complainant can believe the words of accused to represent the cheques for encashment after two months. Therefore, this court is of the opinion that there is no evidence from the side of complainant to represent the cheques for encashment for the 2 nd time. Under such circumstances, the complainant has to issue legal notice SCCH-2 19 C.C.No.9917/2023 within 30 days from the date of receipt of information from the bank as "Account Closed''. However, in the instant case the complainant has issued the legal notice on 01.04.2023. Therefore it is manifestly clear that the complainant has not complied the mandatory requirement of Sec.138(b) of NI Act.
25. Now, whether the notice issued by the complainant is in accordance with law or not?. According to the complainant he has issued the legal notice to the accused as per Ex.P7. As per Ex.P10 & 11 the notice issued by the complainant was returned with shara as "No such person''. In the instant case the accused side has stoutly denied the service of notice. At this juncture it is worth to take Ex.P7, Ex.P10 & Ex.P11 for discussion. On careful perusal of these documents, it appears to this court that the complainant has not mentioned the name of father of accused. Per contra the accused has produced his Aadhaar card. On perusal of the Aadhaar card the address of accused is mentioned as "S/o Dayananda, #2, Shetti beedu, Garudachar palya, Bengaluru, Karnataka''. It is interesting to note that, on perusal of Ex.D17, it appears to this court that the Aadhaar card of accused was issued on 25.09.2017 and he was downloaded on 29.07.2021. On careful comparison of address mentioned in Ex.D17, complaint and notice, the addresses of accused appears to be completely different. One more important SCCH-2 20 C.C.No.9917/2023 aspect is that Ex.D17 was issued to the accused in the year 2017. Therefore, Ex.D17 was issued at an undisputed point of time. Likewise, the same was downloaded by the accused was also an undisputed point of time. In other words, either in the year 2017 or in the year 2021 there was no dispute by and between the complainant and accused. Therefore, the complainant has not sent the notice to the correct address of the accused. At the cost of repetition, the complainant has not mentioned the father name of the accused in the notice. As such, again at the cost of repetition, the complainant has not complied the mandatory requirements of Sec.138(b) of NI Act.
26. Now, this court has to analyze whether there is an alleged loan transaction by and between the complainant and accused or not?. According to the complainant during the month of September 2020, the accused approached the complainant and sought for hand loan of Rs.21,30,000/- and at which point of time he was agreed to return the same after 2 years. Believing the words of the accused, the complainant had lent Rs.21,30,000/- by way of cash to the accused on various dates. He has mobilized the said amount from his family members, friends and also by pledging golden ornaments. Already this court has observed that Ex.P1, Ex.P3 & Ex.P5 are pertaining to the bank account of accused SCCH-2 21 C.C.No.9917/2023 and Ex.P1(a), Ex.P3(a) and Ex.P5(a) are the signatures of accused. Therefore, the said aspect need not require for further discussion. Hence this court do not wish to take the aspect of signatures for elaborate discussion.
27. The complainant got examined himself as PW.1 and he was cross examined from the side of accused. Further the accused examined himself as DW.1. He was cross examined from the side of complainant. On careful perusal of cross- examination of PW.1 and evidence of DW.1, it can be gathered that the accused has taken a contention that, at a time of receiving centering materials he had given his cheques to the complainant as security. Further, it can be gathered that the accused has denied the alleged financial transaction and also financial capacity of the complainant. At this juncture, it is worth to reproduce the said cross- examination of PW.1 here itself for better understanding:
"ಸೆಂಟ್ರಿಂಗ್ ಮಟೀರಿಯಲ್ಗಳನ್ನು ಬಾಡಿಗೆಗೆ ತೆಗೆದುಕೊಳ್ಳು ವಾಗ ನನ್ನ ಮತ್ತು ಪಿರ್ಯಾದುದಾರರ ನಡುವೆ ಕರಾರು ಆಗಿತ್ತು . ಆ ಸಮಯದಲ್ಲಿ ಭದ್ರತೆಗೆಂದು ನನ್ನ ಚೆಕ್ಕು ಗಳನ್ನು ಪಿರ್ಯಾದುದಾರರಿಗೆ ಕೊಟ್ಟಿದ್ದೆ. ಸದರಿ ಚೆಕ್ಕು ಗಳನ್ನು ದುರುಪಯೋಗಪಡಿಸಿಕೊಂಡು ನನ್ನ ವಿರುದ ್ಧ ಕೇಸನ್ನು ಹಾಕಿರುತ್ತಾ ರೆ''. "ಆರೋಪಿಗೆ ನೀವು ಯಾವುದೇ ಹಣ ನೀಡಿಲ್ಲದೇ ಇದ್ದರೂ ಸಹ ಸುಳ್ಳು ಸಾಕ್ಷಿ ನುಡಿಯುತ್ತಿದ್ದೀರ ಎಂದರೆ ಸರಿಯಲ್ಲ''.SCCH-2 22 C.C.No.9917/2023
"ಈ ಮೆ ೕಲೆ ಹೇಳಿದ ಪ್ರಕರಣಗಳಲ್ಲಿ ಹಣವನ್ನು ಸ್ನೇಹಿತರು ಮತ್ತು ಫ್ಯಾ ಮಿಲಿಯಿಂದ ಪಡೆದು ನೀಡಿರುತ್ತೇನೆ ಎಂದು ನಿಮ ್ಮ ದೂರುಗಳಲ್ಲಿ ಹೇಳಿರುತ್ತೀರ ಎಂದರೆ ಸರಿ. ನಿಮ ್ಮಲ್ಲಿ ಆರ್ಥಿಕ ಸಾಮರ್ಥ್ಯ ಇಲ್ಲದಿದ್ದರೂ ಸಹ ಆರ್ಥಿಕ ಸಾಮರ್ಥ್ಯ ಇದೆ ಎಂದು ಬಿಂಬಿಸುವ ಸಲುವಾಗಿ ಸ್ನೇಹಿತರು ಮತ್ತು ಫ್ಯಾ ಮಿಲಿಯಿಂದ ಪಡೆದುಕೊಳ್ಳು ತ್ತೇನೆ ಎಂದು ಹೇಳಿರುತ್ತೀರ ಎಂದರೆ ಸರಿಯಲ್ಲ''.
"ಆರೋಪಿಗೆ ನೀವು ಯಾವುದೇ ಹಣವನ್ನು ಸಾಲವಾಗಿ ನೀಡಿದೇ ಇದ್ದರೂ ಸಹ ಅವರು ಸೆಂಟ್ರಿಂಗ್ ವಿಚಾರವಾಗಿ ಭದ್ರತೆಗೆಂದು ನೀಡಿದ್ದ ಚೆಕ್ಕನ್ನು ದುರುಪಯೋಗಪಡಿಸಿಕೊಂಡು ಈ ಕೇಸನ್ನು ಹಾಕಿರುತ್ತೀರ ಎಂದರೆ ಸರಿಯಲ್ಲ. ನಿಮ ್ಮ ಮತ್ತು ಆರೋಪಿ ನಡುವೆ ಯಾವುದೇ ಹಣಕಾಸಿನ ವ್ಯವಹಾರ ನಡೆದಿರುವುದಿಲ್ಲ ಎಂದರೆ ಸರಿಯಲ್ಲ''.
28. After cogitating the contentions raised by the accused, it can be inferred that the accused has stoutly denied the alleged transaction and also financial capacity of complainant. As per the averments of complaint, the complainant allegedly lent Rs.21,30,000/- in cash on various dates and the accused sought for 2 years time to return the same. Therefore, it is crystal clear that the complainant has not taken any documents at the time of lending alleged loan of Rs.21,30,000/- (Twenty one lakhs thirty thousand only). Admittedly the said amount is not a small amount. On the other hand it was a hefty amount. Normally any prudent man cannot lent without ascertaining the repayment and also without obtaining security documents.
SCCH-2 23 C.C.No.9917/202329. Further, at the time of alleged lending of hefty amount, the complainant has not obtained the cheques also. In other words it is not the case of the complainant that at the time of alleged loan transaction, he had obtained post dated cheques from the accused. Further, it is not the case of the complainant that he was lending the amount for interest. It is surprise to note here that the complainant he himself has received money from his friends, family members and also pledging golden ornaments in order to advance hand loan to the accused for 2 years without any interest. This conduct of the complainant creates a doubt in the mind of this doubt. If at all the complainant had availed loan from his friends, he could examined the said person.
30. Further, if at all the complainant had pledged his golden ornaments, he could produce the documents to substantiate the same. The non production of documents to substantiate regarding pledging of golden ornaments creates a serious doubt in the mind of this court. Further, the accused is not a relative of the complainant. Such being the case what was the necessity for the complainant to lent hefty amount of Rs.21,30,000/- in cash and also mobilizing from family members, friends and pledging golden ornaments is not forthcoming. This aspect also creates doubt about the alleged loan transaction.
SCCH-2 24 C.C.No.9917/202331. In the instant case the complainant has produced Ex.P12 to substantiate the financial capacity. Ex.P12 is the computerized copy of registered sale deed dated 28.05.2020. On perusal of this document the mother of complainant sold the property. The sale consideration has been mentioned as Rs.68,75,550/-. During the course of cross-examination of PW.1, he has clearly deposed that his mother sold the property to come out from the commitment. Further, he has admitted that, they were in need of money for the purpose of constructing a building. The said cross-examination of PW.1 is very much necessary to reproduce here itself: "ನಿ.ಪಿ.12 ರ ಕ್ರಯಪತ್ರವು ನಿಮ ್ಮ ತಾಯಿಯವರು ಆಸ್ತಿಯನ್ನು ಮಾರಾಟ ಮಾಡಿದ ಕುರಿತಾಗಿರುತ್ತದೆ ಎಂದರೆ ಸರಿ. ನಿಮ ್ಮ ತಾಯಿಯವರು ಯಾವ ಕಾರಣಕ್ಕಾ ಗಿ ಸದರಿ ಆಸ್ತಿಯನ್ನು ಮಾರಾಟ ಮಾಡಿರುತ್ತಾ ರೆ ಎಂದರೆ ಸಾಕ್ಷಿ ಯು ಕೋವಿಡ್ ಸಂದರ್ಭದಲ್ಲಿ ಕೆಲವೊಂದು ಕಮಿಟ್ಮೆಂಟ್ ಇದ್ದವು ಹಾಗಾಗಿ ಮಾರಾಟ ಮಾಡಿದ್ದಾ ರೆ ಎಂದು ನುಡಿಯುತ್ತಾ ರೆ. ನಿಮ ್ಮ ತಾಯಿಯವರು ಅವರ ಸಾಲದ ತೀರುವಳಿಗಾಗಿ ಹಾಗೂ ಇತರೆ ಅವಶ್ಯಕತೆಗಳಿಗಾಗಿ ಆಸ್ತಿಯನ್ನು ಮಾರಾಟ ಮಾಡಿರುತ್ತಾ ರೆ ಎಂದರೆ ಸಾಕ್ಷಿ ಯು ಒಂದು ಬಿಲ್ಡಿಂಗ್ ಕಟ್ಟು ತ್ತಿದ್ದೆವು ಅದಕ್ಕೆ ಹಣ ಬೇಕಾಗಿತ್ತು ಅದಕ್ಕೆ ಮಾರಾಟ ಮಾಡಿದ್ದೇವೆ ಎಂದು ನುಡಿಯುತ್ತಾ ರೆ."
32. The above referred cross examination of PW-1 clearly give an indication that the mother of complainant sold the property as per Ex.P.12 for their own commitments. In other words, at the time of selling the said property the mother of SCCH-2 25 C.C.No.9917/2023 complainant was in a committent and they were constructed a building. Such being the case, the question of lending Rs.21,30,000/- to the accused in cash without receiving documents cannot be believable.
33. That apart, according to the complaint averments, the complainant has lent amount of Rs.21,30,000/- on various dates. However, during the course of cross examination of PW-1, he has deposed that during the month of September- 2020, the accused sought for loan and at that point of time itself he has given the amount. Therefore, there is a clear contradiction in the complaint averments and also in the deposition of PW-1 with regard to lending of loan. This aspect also creates doubt about the alleged loan transaction. It is also fatal to the case of complainant.
34. Apart from the above referred aspects, during the course of cross examination of PW-1, learned counsel for accused produced complaints lodged by the complainant against other accused persons. The said complaints have been marked as Ex.D.2, Ex.D.9, Ex.D.21, and Ex.D.27.
35. On perusal of Ex.D.2, it appears to this court that the complainant has averred that during the month of May- 2020, he has lent Rs.15,00,000/- and mobilized the said amount from his family members, friends and also by SCCH-2 26 C.C.No.9917/2023 pledging gold ornaments. That apart, On perusal of Ex.D.9, it appears to this court that the complainant has averred that during the month of June-2021, he has lent Rs.15,00,000/- and mobilized the said amount from his family members, friends and also by pledging gold ornaments.
36. Further, On perusal of Ex.D.21, it appears to this court that the complainant has averred that during the month of November-2021, he has lent Rs.3,00,000/- and mobilized the said amount from his family members, friends. On perusal of Ex.D.27, it appears to this court that the complainant has averred that during the month of August- 2021, he has lent Rs.1,15,000/- by way of cash.
37. It is relevant to note that all the above referred transactions are cash transactions. Further, the complainant has averred that he has mobilized the amount from family members, friends and golden ornaments. In the instant case also the complainant averred that he has lent Rs.21,30,000/- by way of cash by accumulating the said amount from his family members, friends and golden ornaments. Therefore, the production of Ex.D.2, Ex.D.9, Ex.D.21 and Ex.D.27 from the side of accused creates a serious doubt about the alleged loan transaction by and between the complainant and accused.
SCCH-2 27 C.C.No.9917/202338. Now, at this juncture, it is worth to rely on the decision of Hon'ble Apex Court reported in (2020) 12 SCC 724 between APS Forex Services Pvt., Ltd., Vs. Shakti International Fashion Linkers and Ors., wherein the Hon'ble Apex Court held as follows:
"We are of the view that whenever the accused has questioned the financial capacity of the complainant in support of his probable defence, despite the presumption under Section 139 of the N.I. Act about the presumption of legally enforceable debt and such presumption is rebuttable, thereafter the onus shifts again on the complainant to prove his financial capacity and at that stage the complainant is required to lead the evidence to prove his financial capacity, more particularly when it is a case of giving loan by cash and thereafter issuance of a cheque."
39. In the instant case, the accused has denied the financial capacity of the complainant. It is settled position of law that initially the complainant need not to prove the SCCH-2 28 C.C.No.9917/2023 financial capacity. However, if the accused has disputed the financial capacity, under such circumstances it is the bounden duty of complainant to prove the financial capacity. At the cost of repetition, in the instant case also the accused has disputed the financial capacity of the complainant. At this juncture, it is worth to rely on the decision of Hon'ble Apex Court reported in (2019) 5 SCC 418 between Basalingappa vs. Mudibasappa, wherein the Hon'ble Apex Court held that, "the accused can always show that the complainant had no financial capacity to advance the alleged loan and the same shall be a probable defence which the accused can raise". Further, it is absolutely necessary to rely on the judgment of Hon'ble Kerala High Court reported in 2020 SCC OnLine Ker 1750 between Sunitha Vs. Sheela Antony, wherein, the principles laid down by the Hon'ble Supreme Court of India in the above mentioned judgments have been summarized and it has been held as follows:
"The complainant has no obligation, in all cases under Section 138 of the Act, to prove his financial capacity. But, when the case of the complainant is that he lent money to the accused by cash and that the accused issued the cheque in SCCH-2 29 C.C.No.9917/2023 discharge of the liability, and if the accused challenge the financial capacity of the complainant to advance the money, despite the presumption under Section 139 of the Act, the complainant has the obligation to prove his financial capacity or the source of the money allegedly lent by him to the accused.
The complainant has no initial burden to prove his financial capacity or the source of the money. The obligation in that regard would arise only when his capacity or capability to advance the money is challenged by the accused."
40. Again at the cost of repetition, the presumption favours the complainant. However, the accused has raised probable defence with respect to transaction and financial capacity. Further, at the cost of repetition, complainant herein has failed to establish that, he had lent a sum of Rs.21,30,000/- to the accused as hand loan in cash. He has failed to establish his financial capacity to lent an amount of Rs.21,30,000/- to the accused in cash.
SCCH-2 30 C.C.No.9917/202341. It is crystal clear that when once the accused has disputed the financial capacity of the complainant, it is his bounden duty to prove the financial capacity to the extent of the amount paid to the accused. In this connection, it is appropriate to rely on the decision of the Hon'ble High Court of Karnataka reported in 2012 (3) KCCR 2057, it is held that, "No proof as to other source of income from land, no evidence that he had a bank balance of Rs.2,00,000/- on the day he has alleged to have advanced the loan. Mere issuance of cheque is no sufficient unless it is shown that cheque was issued towards discharge of a legally recoverable debt.
When the financial capacity of the
complaint is questioned, the
complainant has to establish his
financial capacity".
42. With the help of discussions referred to above, it is crystal clear that, complainant has utterly failed to prove the alleged loan transaction and also financial capacity to lent Rs.21,30,000/- to accused as a hand loan in cash. The non production of the documents to show the financial capacity SCCH-2 31 C.C.No.9917/2023 of the complainant clearly creates a serious doubt regarding the advancement of loan amount. Though the complainant has produced Ex.P.12, he himself has admitted that his mother had sold the said property for her commitments. Hence Ex.P12 will not come to the aid of complainant to substantiate his financial capacity. If really the complainant had pledge his golden ornaments, certainly he would produce documents to substantiate the accumulation of amount and also to prove his financial capacity. The non-production of the documents is fatal to the case of the complainant and also creates a serious doubt in the mind of the Court regarding alleged loan transaction. Thus, the presumption formed in favor of the complainant stands successfully rebutted.
43. On evaluation of the entire evidence, this Court finds that, the evidence adduced by P.W.1 is improbable and difficult to believe. As such, the evidence of P.W.1 failed to inspire the confidence of this Court. The documentary evidence produced by the P.W.1 is not sufficient to hold that, the complainant had financial capacity to lent Rs.21,30,000/- to the accused in cash.
44. Therefore, from the available materials on records it clearly goes to show that, the contention of accused regarding he had given the cheques to the complainant as SCCH-2 32 C.C.No.9917/2023 security with respect to centering business appears to be nearer to the truth. The evidence also reveals that, there was no existence of legally enforceable debt by and between the complainant and accused. Besides the above referred aspects, the complainant has failed to comply the mandatory requirement of Section 138(b) of NI Act.
45. Therefore, it is crystal clear that the accused has raised the probable doubt regarding the alleged loan transaction. Hence, this court holds that, the accused has raised plausible defence and successfully rebutted the presumption available in favour of the complainant in the present case.
46. It is pertinent to note that, once the accused has rebutted the presumption, the burden shifts back to the complainant. However, the complainant has failed to prove his case. Hence, this court holds that, the complainant has failed to prove that, the accused has committed an offence punishable Under Sec. 138 of Negotiable Instruments Act. Accordingly, this Court is answered Point No.1 in the Negative.
47. Point No 2 : In view of the above findings, this Court proceeds to pass following:
SCCH-2 33 C.C.No.9917/2023:O R D E R:
Acting U/Sec.255(1) Cr.P.C., the accused is acquitted for the offence punishable under Section 138 of Negotiable Instruments Act, 1881.
The bail bond of the accused shall stands cancelled.
(Dictated to the stenographer directly on computer, typed by her, revised and corrected by me, and then pronounced in the open Court on this the 31st October, 2025) (H.P. Mohan Kumar) VI Addl. Judge and ACJM., Court of Small Causes, Bengaluru.
:ANNEXURE:
LIST OF WITNESSES EXAMINED BY THE COMPLAINANT:
P.W.1 : Sri. Deepak Amara.
LIST OF DOCUMENTS MARKED ON BEHALF OF
COMPLAINANT:
Ex.P.1 : Cheque bearing No.444743 dated 12.12.2022.
Ex.P.1(a) : Signature of the accused.
SCCH-2 34 C.C.No.9917/2023
Ex.P.2 & : Bank endorsements dated:14.12.2022 and
Ex.P2(a) 07.03.2023 respectively
Ex.P.3 : Cheque bearing No.444744 dated 12.12.2022.
Ex.P.3(a) : Signature of the accused.
Ex.P.4 & : Bank endorsements dated:14.12.2022 and
Ex.P4(a) 07.03.2023 respectively
Ex.P5 : Cheque bearing No.444746 dated 12.12.2022.
Ex.P5(a) : Signature of the accused.
Ex.P6 & : Bank endorsements dated:14.12.2022 and
Ex.P6(a) 07.03.2023 respectively.
Ex.P7 : Office copy of the legal notice dated: 01.04.2023.
Ex.P8 & : RPAD receipts
Ex.P9
Ex.P10 & : Returned postal covers.
Ex.P11
Ex.P10(a) : Returned notices.
&
Ex.P11(a)
Ex.P.12 : Computerized copy of registered sale deed dated
28.05.2020.
LIST OF WITNESSES EXAMINED BY THE ACCUSED:
D.W.1 : Sri. Prasanna.SCCH-2 35 C.C.No.9917/2023
LIST OF DOCUMENTS MARKED ON BEHALF OF ACCUSED:
Ex.D.1 & : Certified copies of order sheet and complaint Ex.D2 pertaining to CC No.9914/2023. Ex.D3 : Certified Copy of cheque bearing No. 374084 dated 12.12.2022.
Ex.D4 : Certified copy of Bank endorsement. Ex.D5 : Certified Copy of legal notice dated 01.04.2023.
Ex.D6 : Certified copy of Postal receipts
Ex.D7 : Certified copy of Speed post acknowledgment
Ex.D8 & : Certified Copies of order sheet and complaint
Ex.D9 pertaining to CC No.9913/2023
Ex.D10 : Certified Copy of cheque bearing No. 998461
dated 12.12.2022.
Ex.D11 : Certified copy of Bank endorsement dated
13.12.2022.
Ex.D12 : Certified Copy of legal notice dated 01.04.2023.
Ex.D13 : Certified copy of Postal receipts.
Ex.D14 : Certified copy of Speed post acknowledgment.
Ex.D15 : Certified copy of Postal track consignment.
Ex.D16 : Account statement pertaining to accused.
Ex.D17 : Notarized copy of Aadhar card pertaining to
accused.
SCCH-2 36 C.C.No.9917/2023
Ex.D.18 & : colour printouts.
Ex.D.19
Ex.D20 & : Certified copies of order sheet and complaint Ex.D.21 pertaining to CC No.9915/2023 Ex.D.22 : Certified copy cheque bearing No. 000010 dated 12.12.2022.
Ex.D.23 & : Certified copies of bank endorsements dated Ex.D.24 13.12.2022 and 06.03.2023 Ex.D.25 : Certified copy of legal notice dated 01.04.2023. Ex.D.26 & : Certified copies of order sheet and complaint Ex.D.27 pertaining to CC No.9916/2023.
Ex.D.28 : Certified copy of cheque bearing No. 594025 dated 12.12.2022.
Ex.D.29 & : Certified copies of bank endorsements dated
Ex.D.30 14.12.2022 and 07.03.2023.
Ex.D.31 : Certified copy of legal notice dated 01.04.2023.
Digitally signed by H
HP P MOHANKUMAR
MOHANKUMAR Date: 2025.10.31
16:17:39 +0530
(H.P. Mohan Kumar)
VI Addl. Judge and ACJM.,
Court of Small Causes,
Bengaluru.